Ram Swaroop And Ors vs Mohammad Islam
2022 Latest Caselaw 2639 Raj/2

              HIGH COURT OF JUDICATURE FOR RAJASTHAN
                          BENCH AT JAIPUR

                   S.B. Civil Second Appeal No. 669/2009
      1. Ramswaroop S/o Shri Bhura Lal, R/o Mohalla Jatpada, Purani Tonk,
      Tonk, Rajasthan.
      2. Babu Lal S/o Shri Bhura Lal, R/o Chhawani Chauraha, Tonk
      3. Kishan Gopal S/o Shri Bhura Lal, R/o Mohalla Jatpada, Purani Tonk,
      Rajasthan.
                                                          ----Defendants-Appellants.
                                          Versus
      Mohammad Islam S/o Hazi Alladin, R/o Malpura Gate, Purani Tonk,
      Tonk."Died during the pendency of appeal"
      1/1 Rashid Mohammad S/o Mohammad Rafiq, aged 53 years, R/o
      Mainwash Gate, Sangpura, Near Karigaron ka Mandir, Tonk.
                                                               ----Plaintiff-Respondent

      For Appellant(s)         :     Mr. G P Sharma
                                     Mr. Mahesh Chand Gupta
      For Respondent(s)        :     Mr. L L Gupta
                                     Mr. Vikram Jonwal


              HON'BLE MR. JUSTICE SUDESH BANSAL
                           Judgment
      30/03/2022
Reportable

1. Appellants-defendants-tenants have filed this second appeal

under Section 100 CPC challenging the decree for eviction dated

27.09.2008 passed by Civil Judge (Senior Division), Tonk in civil

suit No.82/2004 in relation to the shop in question on the ground

of bona fide and personal need and which has been affirmed in

first appeal No.81/2008 passed by District Judge, Tonk vide

judgment dated 21.08.2009.

2. The simple issue involved in this second appeal is whether

the eviction decree passed by two courts below recording a fact

finding that the rented shop of appellants is required for landlord's

grandson-Mohammad Haleem to start grocery business suffers

from perversity or not however, counsel for appellants-tenants has

tried to make a persuasive attempt seeking declaration of eviction

(2 of 21) [CSA-669/2009]

decree passed by civil court as without jurisdiction and nullity

raising inter alia following points:-

(I) That in the plaint itself, it was pleaded that for this rented shop, the landlord-Hazi Alladin by creating waqf of waqf-alal-aulad for the benefit of his family members including son and grandson and appointed plaintiff as mutawalli, hence, the rented shop is a waqf property and the jurisdiction of civil court to pass an eviction decree in relation to the waqf property is barred.

(II) That in relation to the rented shop of appellants, either the eviction proceedings could have been brought before the Waqf Tribunal or in the alternative, by treating the rented shop as "public premise", the eviction proceedings could/would have been initiated before the Estate Officer under the provisions of Rajasthan Public Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred to as "the Unauthorised Occupants Act of 1964").

(III) That the eviction suit instituted before the civil court for the rented shop was without jurisdiction as the jurisdiction of civil court stands barred either under Section 85 of the Waqf Act, 1995 or by virtue of Section 10(A) of the Unauthorised Occupants Act of 1964. (IV) In addition to the aforementioned points, learned counsel for appellants-tenants submitted that fact findings recorded by two courts below regarding the issue of bona fide necessity, comparative hardship and partial eviction are perverse and the mutawalli had no right to initiate eviction proceedings.

Hence, according to counsel for appellants whole eviction proceedings commenced before the civil court and the eviction decree passed by the civil court are without jurisdiction and deserve to be quashed and set aside.

3. Per contra, learned counsel appearing for respondent-

plaintiff has urged that admittedly appellants are tenants in the

(3 of 21) [CSA-669/2009]

rented shop of Hazi Alladin @Rs.40/- per month. It has been

pleaded in the plaint that Hazi Alladin made a family settlement by

way of execution of a registered waqf deed for the benefit of his

family and descendants including his son and grandson

Mohammad Haleem. Landlord-Hazi Alladin, settler of waqf made

private waqf in the nature of waqf-alal-aulad (not waqf-alal-allah)

for the benefit of his family and in the waqf deed itself, the

plaintiff was authorized to manage, maintain and deal with the

rented shop to look after the interest of beneficiaries of the waqf.

Since, in the private waqf of waqf-alal-ul-aulad itself, Mr.

Mohammad Haleem S/o Mohammad Siddaqi is one of the

beneficiaries and being unemployed he is in bona fide requirement

of the rented shop to start his own grocery business, therefore, for

his bona fide and reasonable necessity, the mutawalli rightly

instituted the eviction suit before the civil court under the

provisions of Rajasthan Premises (Control of Rent and Eviction)

Act, 1950 on 30.01.2003 against appellants-defendants-tenants.

He submits that rented shop is not a "public premise" and

appellants are tenants in the shop and not unauthorized

occupants, therefore, provisions of the Unauthorised Occupants

Act of 1964 are not applicable to the rented shop. Counsel for

respondent further submits that the present eviction suit involves

the dispute of eviction of tenant on the ground of bona fide

necessity of landlord's grandson and this civil suit does not involve

any dispute of waqf whether or not a property is a waqf property

or whether a waqf is a shia waqf nor the Board of Muslim Waqf or

any person interested in a waqf either religious trust, masjid or

beneficiary of waqf have disputed the eviction proceedings before

(4 of 21) [CSA-669/2009]

the civil court. The dispute involved in the eviction suit does not

fall within the disputes prescribed under Sections 6 and 7 of the

Waqf Act, 1995 therefore, it is wrong to say and tenant has no

locus standi to say that civil court has no jurisdiction to entertain,

trial and pass eviction decree.

Learned counsel for respondent vehemently urged that

appellants-tenants did not took any such defence/objection in

their written statement before the trial court nor they have

disputed the nature of waqf as waqf-alal-aulad (which is wholly

different from the waqf-alal-allah) and appellants being admitted

tenants in the rented shop have no locus standi to raise such

issues at the appellate stage more particularly when they

themselves admitted to be a tenant in the rented shop of Hazi

Alladin. He submits that appellants-tenants are making an attempt

to twist the issue of eviction into the issue of dispute related to

waqf property, just for his own benefit to retain possession of

rented shop for a longer period and to evade their eviction

pursuant to eviction decree itself. He submits that the points

raised by counsel for appellants in the present appeal are

preposterous, unfair and without having any locus.

Counsel for plaintiff argued that the eviction decree passed

by civil court on the ground of bona fide and personal necessity

against appellant-tenants suffers from no infirmity and perversity

as such the same do not calls for any interference at the stage of

second appeal and the same is liable to be sustained.

4. Heard counsel for both parties and perused the impugned

judgment and record.

(5 of 21) [CSA-669/2009]

5. Facts in brief are that the rented shop is admittedly in

tenancy of appellants through one Shri. Hazi Alladin S/o Kallu by

caste Musalman. It appears that Hazi Alladin executed a

registered waqf deed dated 17.01.1957 whereby and whereunder

the rented shop was given to wakf alal-aulad for the benefit of his

grandsons namely, Mohammed Saleem, Mohammed Haleem,

Mohammad Ajeem, Mohammad Naeem S/o Shri Mohammad

Siddaqi and in this waqf deed, his one son namely, Mr. Mohammed

Islam S/o Hazi Alladin was appointed as mutawalli. After

extinction of all four grandsons, the shop was allowed to use for

religious purpose of waqf by jama masjid. The mutawalli namely,

Mohammed Islam instituted civil suit for eviction against

appellants-tenants, in the capacity mutawalli on 30.01.2003. The

eviction suit was filed on the ground that the rented shop is

needed for Mohammed Haleem S/o Mohammed Siddaqi as he has

attained age of 29 years and is unemployed and wants to start his

grocery business in the rented shop.

6. Appellants-defendants submitted written statement.

Appellants accepted themselves to be the tenant in the rented

shop @Rs.40/- per month however, denied the eviction. Appellants

denied the bona fide and reasonable necessity of rented shop to

Mohammed Haleem and disputed the right of plaintiff as mutawalli

to bring a civil suit for eviction.

In the written statement, it was also disclosed that prior to

the present eviction suit for rented shop in question, the eviction

suit No.44/1964 titled Id Mohammed vs. Bhura Lal for the

necessity of Mohammed Aleem was instituted before the civil court

(6 of 21) [CSA-669/2009]

and in that civil suit, parties entered into compromise on

17.02.1978 by increasing the monthly rent from Rs.14/- to

Rs.40/-. Thereafter, another eviction suit bearing No.313/1984

titled Mohammed Islam vs. Ramswaroop was also filed before the

civil court for the necessity of Mohammed Ajeem on 04.04.1984.

This second eviction suit was dismissed vide judgment dated

20.02.1993 and appeal there-against too was dismissed vide

judgment dated 19.08.1994. It was admitted that even the

defendants also filed a civil suit for permanent injunction before

the civil court itself, against the present plaintiff Mohammed Islam

and against the sons of Mohammad Siddiqi being civil suit

No.36/1988 titled Ramswaroop and others vs. Mohammed Islam

and others on 28.01.1988. In their civil suit for permanent

injunction, the decree for permanent injunction was passed in

their favour for not creating any holes in the roof of the rented

shop. The defendants alleged that the bona fide necessity, set out

in the plant is fictitious and the eviction suit has been filed with an

ulterior motive to enhance the rent.

7. It is worthy to note here that in the written statement

appellants-defendants did not denied the waqf as a private waqf of

waqf-alal-aulad which was made for the benefit of the family

members nor the defendants raised any defence that the rented

shop is a property of public waqf as such the same be treated as

public premise under Section 2(b) of the Unauthorised Occupants

Act of 1964 and by virtue of Section 10(A) of this Act, the

jurisdiction of civil court to entertain, trial and decide the eviction

suit is barred.

8. The learned trial court, settled the issues related to bona

fide and personal necessity of the rented shop, comparative

(7 of 21) [CSA-669/2009]

hardship, partial eviction and specific issue No.4 about the right of

the plaintiff to bring the eviction suit in the capacity of mutawalli.

In support of respective issues, both parties adduced evidence.

Plaintiff produced PW-1 to PW-3 and defendant produced DW-1 to

DW-5. Registered waqf deed dated 17.01.1957 was exhibited as

Exhibit-1. The trial court on appreciation of evidence on record decided

the issue of bona fide and personal necessity in favour of the plaintiff

holding that the rented shop is bonafidely required for Mohammed

Saleem S/o Mohammad Siddiqi for whom the property was kept as

wakf alal-ul-aulad. The other issues of comparative hardship and

partial eviction were also considered in detail and decided in

favour of plaintiff. The issue No.4 relating to the right of mutawalli

was decided in the manner that as per the waqf deed Exhibit-1,

the plaintiff is mutawalli. In the waqf deed, mutawalli has been

authorised to manage, maintain, take care and look after the shop

in question. The mutawalli is entitled to receive the rent. There is

no embargo in the waqf deed against the mutawalli to bring the

civil suit for eviction for the benefits of persons fro whom waqf has

been created in the nature of waqf-alal-aulad. The trial court held

that if mutawalli has filed the eviction suit for the bona fide need

of Mahammed Saleem, for whom the property has been made

wakf alal-ul-aulad, it cannot be concluded that mutawalli is not

authorised to bring the suit. Accordingly issue No.4 was decided in

favour of plaintiff and the eviction suit was decreed along with the

payment of rent @Rs.40/- per month as mesne profits vide

judgment dated 27.09.2008.

9. Appellants assailed the judgment and eviction decree by way

of filing first appeal before the first appellate court, appellants-

tenants raised an objection that since the rented shop is waqf

(8 of 21) [CSA-669/2009]

property though it may be a wakf alal-ul-aulad however, the civil

court does not have jurisdiction to decide the eviction suit as the

same is triable by Waqf Tribunal. No reference of any specific

provision of law was given, however, it appears that appellants

took plea of Section 85 of the Waqf Act, 1995 to contend that in

relation to the waqf property, only the Waqf Tribunal has

jurisdiction to entertain and decide the suit and the jurisdiction of

civil court is expressly barred. That apart, the findings in relation

to bona fide and reasonable necessity, comparative hardship and

partial eviction were also challenged. The first appellate court

considered the first appeal on merits and re-hearing of all issues

was given. The first appellate court while dealing with the issue of

bona fide necessity, comparative hardship and partial eviction

affirmed the findings of trial court. The first appellate court dealt

with the objection of appellants while deciding the issue No.4. It

has been found that the rented shop may be of waqf of property,

however, there is no dispute about the waqf property as enshrined

under Sections 6 & 7 of the Waqf Act, 1995, therefore, the

eviction suit would be maintainable before the civil court. Reliance

was placed on the judgment of Rajasthan High Court, delivered in

case of Rajendra Kumar Sharma through his legal

representatives vs. Rakesh & ors. reported in [AIR 2009

(Raj.) 13] decided on 08.07.2008 wherein reliance was placed on

the judgment passed in the case of Yashpal Lala Shiv Narain v.

Allatala Tala Malik Waqf Ajakhan Mus reported in [AIR

2006 ALLAHABAD 115]. In these judgments, it has categorically

been observed and held that eviction proceedings in relation to

waqf properties will lie before the civil court.

(9 of 21) [CSA-669/2009]

The first appellate court also considered the factual aspect

that prior to the present civil suit, two previous eviction suits in

relation to the rented shop have also been filed before the civil

court and have been entertained and decided by the civil court

(Exhibit Nos.A-4 & A-5). The first appellate court also observed

that even appellants-tenants themselves filed civil suit for

permanent injunction before the civil court in relation to rented

shop and which was decreed in their favour (Exhibit- A-8). It has

been categorically observed that eviction proceedings for rented

shop are maintainable before the civil court only. Thus, the first

appellate court observed that Mutawalli is entitled and has a right

to bring an eviction suit in the present facts and circumstances

where the property has been waqf in form of wakf alal-ul-aulad it

means for the benefit of the family members of the wakif. It was

observed that such nature of waqf being waqf-alal-aulad is a

private waqf. Thus, the first appellate court affirmed the decree for

rent and eviction and dismissed the first appeal vide judgment

dated 21.08.2009.

10. Against concurrent findings of fact on the issue of bona fide

and reasonable necessity, comparative hardship and partial

eviction as also in relation to the right of mutawalli to bring the

eviction suit, appellants-tenants have filed this second appeal.

11. In the second appeal, counsel for appellants has made

persuasive attempt to contend that the rented shop is a waqf

property and therefore, a legal question arises in the present

appeal that as to whether the civil court has a right to entertain,

trial and decide the eviction suit in relation to the waqf property?

12. Counsel for appellants has argued that since the rented shop

is a waqf property, the same should fall within the definition of

(10 of 21) [CSA-669/2009]

public premise. The provision of Section 2(b) of the Unauthorised

Occupants Act of 1964 and Section 10(A) of the Unauthorised

Occupants Act of 1964 have pressed into service to contend that

since the rented shop is a public premise, the jurisdiction of civil

court stands barred by virtue of Section 10(A) of the Unauthorised

Occupants Act of 1964. That apart, counsel for appellants has also

argued that by virtue of Section 85 of the Waqf Act, 1995, the

jurisdiction of civil court to decide the eviction suit in relation to

waqf property stands barred as at the most, proceedings could

have been brought before the Waqf Tribunal. In support of such

legal submissions, counsel for appellants has placed reliance on

the judgment passed in the case of Basanti Devi & ors. vs.

Masjid Panch Visaytiyan & Anr. Reported in [2016(2) WLC

(Raj.) 464. Apart from these legal questions, counsel for

appellants has also assailed the fact findings of the two courts

below in relation to issue of bona fide and personal necessity.

13. Per contra, learned counsel appearing for respondent

submitted that in the plaint itself, the plaintiff (mutawalli) has

brought this eviction suit with a clear disclosure that the rented

shop was made waqf through the registered waqf deed dated

17.01.1957 as wakf alal-ul-aulad. He submits that wakf alal-ul-

aulad is a private waqf and the wakif has made the waqf for the

benefit of his family. He contends that this wakf alal-ul-aulad may

not be construed as wakf alal-ul-allah. He further submits that in

order to attract a bar of Section 10(A) of the Unauthorised

Occupants Act of 1964, the property in question should be public

premise as defined under Section 2(b) of the Unauthorised

Occupants Act of 1964. He submits that as per Section 2(b)(viii)

the rented shop does not fall within the public premise as neither

(11 of 21) [CSA-669/2009]

it is waqf for alal-ul-allah nor it is entered in the register of waqf

as maintained under the Waqf Act, 1954 and New Waqf Act, 1995.

Hence, he submits that the provisions of the Unauthorised

Occupants Act of 1964 would not apply to the rented shop.

Learned counsel for respondent has submitted that the bar of

Section 85 of Waqf Act, 1995 also does not apply to the present

case as the proceedings would lie and entertainable before the

civil court only as has been held by the Rajasthan High Court in

case of Rajendra Kumar Sharma (supra). He submits that the

findings in relation to the bona fide and reasonable necessity are

concurrent findings of fact and the same are based on

appreciation of evidence as such does not give rise to any

substantial question of law. He further submits that the second

appeal does not involve any substantial question of law as such is

not liable to be entertainable.

14. Having heard counsel for both the parties, on perusal of

impugned judgment and material available on record, this Court

finds that following facts are undisputed on record:-

"(I) Appellants are admittedly tenants in the rented shop of Haji Alladin who later on created a private registered waqf of the rented shop for the purpose of family settlement and for the benefit of his own grandsons during their life time and his own son was appointed as mutawalli.

(II) In the plaint itself, reference of waqf deed dated 17.01.1957 has been given that it is a waqf of waqf-alal- aulad i.e. for the benefit of family members of the settler of waqf and in the waqf deed itself, Mohammed Haleem is one of the beneficiaries for whose necessity, the present eviction suit has been instituted.

(III) Appellants-tenants, in their written statement has not disputed the nature of waqf as waqf-alal-aulad nor has mentioned a whisper that the rented property is a property

(12 of 21) [CSA-669/2009]

of public waqf or is a public premises nor took any objection that the eviction proceedings in relation to the rented shop are not maintainable before the civil court and either ought to have been instituted before the Waqf Tribunal under the Waqf Act, 1995 or before the Estate Officer under the Unauthorised Occupants Act of 1964.

(IV) The plaintiff is son of wakif/settler of waqf who has been appointed mutawalli and he instituted the present eviction suit for the need of one of the beneficiaries of waqf i.e. Mohammed Haleem, against the appellants-tenants. (V) Both the courts have concurrently observed and found the plaintiff as mutawalli is authorized person to initiate the proceedings of eviction."

15. The appellants-tenants have admitted themselves to be a

tenant only and nowhere stated themselves to be a person

interested in a waqf or are in unauthorized occupation of rented shop.

16. In order to deal with the objection raised by counsel for

appellants-tenants at the appellate stage to the jurisdiction of civil

court to pass the eviction decree in relation to the rented shop in

question is concerned, the objection can be segregated in two

parts (a) whether the dispute in the present case is about the

waqf property as envisaged under Sections 6 and 7 of the Waqf

Act, 1995 as such the jurisdiction of civil court be treated as

barred by virtue of Section 85 of the Waqf Act, 1995? (b) whether

the appellants are in unauthorized occupation and the rented shop

is a 'public premise' as defined under Sections 2(b) and (e) and

accordingly the bar of jurisdiction as enshrined under Section 10-A

of the Unauthorised Occupants Act of 1964 is applicable to the

present case?

17. To deal with question (a), it is important to examine the

nature of waqf and the locus standi of appellants-tenants to raise

(13 of 21) [CSA-669/2009]

the issue of jurisdiction of the civil court. The Waqf Act, 1995 has

come in force w.e.f. 22.11.1995 by repealing the previous waqf

Act of 1954. Under Section 3 of Act of 1995, 'beneficiary', 'Board',

'encroacher', 'list of auqaf', 'mutawalli', 'person interested in a

wakf', 'waqf' and 'waqf deed' have been defined in the respective

clauses.

According to definitions as prescribed, the rented shop is not

enlisted in the register of list of waqf as maintained under Section

37 of the Act. As per the waqf deed in question, the beneficiaries

are firstly, the family members and grandsons of the settler of

waqf and after their extinction, shop can be used for religious

purpose. It is a private waqf, in the nature of waqf-alal-aulad

(which is wholly different from the waqf-alal-allah).

The Supreme Court, in case of State of Andhra Pradesh

vs. A.P. State Wakf Board & Ors. reported in [2022 SCC

online 159] has clarified the position of law with regard to the

waqfs that the waqfs may be divided into two clauses i.e. (i) public

and (ii) private. A Public Waqf is one for public religious or

charitable object. A private waqf is one for the benefit of settler's

family and his descendants and it is called Waqf-alal-aulad. It has

been observed that any private waqf shall not be deemed to be

invalid merely because the ultimate benefit reserved therein for

the poor and other religious, pious or charitable purpose of a

permanent nature is postponed until after the extinction of the

family, children or descendants of the person creating the waqf.

The waqf deed in the present case is of such nature i.e. waqf-alal-

aulad.

Considering the nature of waqf, appellants who are

admittedly tenants in shop cannot be treated as person interested

(14 of 21) [CSA-669/2009]

in the present waqf at least on the date of institution of the

present eviction proceedings. In the definition of waqf, Section

3(r)(iv) includes a waqf-alal-aulad to the extent to which the

property is dedicated for any purpose recognized by Muslim law as

pious, religious or charitable, provided when the line of succession

fails, the income of waqf shall be spent for education,

development, welfare and such other purposes as recognized by

Muslim law. It appears that the legislature has not included the

private waqfs within the ambit of Act of 1995. The definition of

waqf as provided indicates that the private waqfs are out of ambit

of the scope of Act of 1995 as also out of the administrative

control of the authorities appointed or constituted under the Act to

except to the extent that provision was made therein for religious

and charitable purposes. Once it is undisputed fact that the waqf

deed in question was made initially for the benefit of family

members of the wakif/settler of waqf mainly for his grandsons,

sons of Mohammed Siddaqi and would be managed by authorities

under the Waqf Act after the life-time of grandsons, the nature of

waqf is waqf-alal-aulad as mentioned in the plaint itself and which

has not been denied/disputed by appellants-tenants neither in

their written statement nor in any other manner, appellants-

tenants cannot be treated as person interested in the waqf at the

time of institution of the present eviction suit. The present suit

was simplicitor instituted for the purpose of eviction on tenants on

the ground of bona fide necessity of Mohammed Haleem who is

undisputedly one of the beneficiaries of the waqf.

In such backdrop of facts, it can be observed that in the

present suit for eviction, there is no dispute regarding waqf

property so as to bring the present suit within the nature of

(15 of 21) [CSA-669/2009]

disputes as envisaged under Section 6 of the Waqf Act. As per the

scheme of Waqf Act, 1995, for those nature of disputes regarding

waqf as prescribed under Section 6, the dispute can be

determined by the Waqf Tribunal by virtue of Section 7 of the

Waqf Act and for such nature of disputes, the jurisdiction of civil

courts is expressly barred by virtue of Section 85 of the Act. In

the present eviction suit, there is no dispute as to whether or not

the rented property is a waqf property or whether it is a waqf of

shia or sunni waqf. Here, firstly the waqf is a private waqf in the

nature of waqf-alal-aulad made for the benefit of the family

members of the wakif and secondly the nature of litigation is

eviction proceedings without involvement of the dispute regarding

the waqf, this Court finds that such nature of eviction suit does not

fall within the ambit of Section 6. The nature of dispute regarding

waqf property as described under Section 6 of Waqf Act, does not

include the present nature of dispute of eviction within its

encompass.

The Supreme Court in case of Ramesh Gobindram (dead)

through Lrs. vs. Sugra Humayun Mirza Wakf reported in

[(2010) 8 SCC 726] dealt with in detail the relevant provisions

of the Waqf Act, 1995 in order to examine the jurisdiction of Waqf

Tribunal qua the civil court to entertain the eviction proceedings of

tenants. It was concluded in para No.35 that in the cases at hand

the, the Act does not provide for any proceedings before the

Tribunal for determination of a dispute concerning the eviction of a

tenant in occupation of a wakf property or the rights and

obligations of the lessor and the lessees of such property. A suit

seeking eviction of the tenants from what is admittedly wakf

(16 of 21) [CSA-669/2009]

property could, therefore, be filed only before the Civil Court and

not before the Tribunal.

The ratio of law propounded in case of Ramesh Gobindram

(supra) has been affirmed and reiterated by the Supreme Court in

case of Faseela M. vs. Munnerul Islam Madrasa Committee &

Anr. Reported in [(2014) 16 SCC 38]. It was observed in para

No.16 that the matter before us is wholly and squarely covered by

Ramesh Gobindram. The suit for eviction against the tenant

relating to a waqf property is exclusive triable by the civil court as

such suit is not covered by the disputes specified in Sections 6 and

7 of the Act.

The issue regarding the jurisdiction of civil court to entertain

the eviction proceedings in relation to waqf property also came

before the Co-ordinate Bench of this Court in case of Rajendra

Kumar Sharma through his legal representatives vs.

Rakesh & ors. reported in [AIR 2009 (Raj.) 13]. It was

observed that the defendants in that case may be sub-tenant for

the purpose of Waqf Board but it is a dispute in between the

landlord and tenant and no relief has been sought in the civil suit

against the Waqf Board nor any question involved in the suit is

required to be determined under any of the provisions of the Waqf

Act. Therefore, a simplicitor suit for eviction relating to the

relationship of landlord and tenant was found triable by civil court

and not by the Waqf Tribunal. This Court finds support from the

judgment of Allahabd High Court in case of Yashpal Lala Shiv

Narain v. Allatala Tala Malik Waqf Ajakhan Mus reported in

[AIR 2006 ALLAHABAD 115]. In that case Allahabad High Court

observed as under:-

(17 of 21) [CSA-669/2009]

"In the circumstances, I am of the opinion that the bar created by Section 85 of the Wakf Act, 1995 does not apply in the present case, which pertains to a Suit for eviction of the tenant from the disputed shop after determination of the tenancy/lease. As such, in my opinion, the submissions made by the learned Counsel for the petitioner (defendant) in this regard, cannot be accepted."

In the present case neither the Muslim Board of Waqf nor

any person interested in waqf has raised any dispute and the

tenants are trying to raise the dispute at the appellate stage.

Firstly, tenants never raised such dispute in their written

statement before the trial court rather admitted that for the shop

in question itself, they have invoked the jurisdiction of civil court

seeking injunction and that apart, it is also admitted fact that prior

to the present eviction suit, two eviction proceedings have already

been commenced and culminated into finality before the civil

court. Thus, the appellants-tenants are neither bona fide nor have

any locus standi to raise other objection.

Thus, in such factual and legal scenario it cannot be held that

the Waqf Tribunal only had the jurisdiction to entertain and pass

eviction decree for the rented shop rather this Court is of

considered opinion that the civil court is well within its jurisdiction

to entertain and decide the eviction proceedings in relation to the

rented shop by passing the decree for eviction.

18. To deal with question (b) referred hereinabove, it may be

noted that Section 2(b) of the Unauthorised Occupants Act of

1964 defines the public premise. As per Section 2(b)(viii), a waqf

as defined in the waqfs Act, 1954 and entered in the lists of waqfs

maintained under Section 26 of that Act. The register of waqfs

(18 of 21) [CSA-669/2009]

maintained under Section 26 of the old Act, 1956 is now governed

by Section 37 of the Waqfs Act, 1995. There is nothing on record

to show that the rented shop has been registered as waqf

property in the register of waqfs maintained under Section 37 of

the Waqf Act, 1995 (26 of the Waqf Act, 1954).

19. In the present case neither there is any pleading nor any

evidence on record that the rented shop is registered in the

register of waqf maintained under the Waqf Act. Moreover, it is not

a public waqf but waqf is in the nature of private waqf, viz. Waqf-

alal-aulad. In absence of any such material, it is not possible for

this Court to hold that the rented shop is a "public premise" as

defined under Section 2(b) of the Unauthorised Occupants Act of

1964.

Further, the present eviction proceedings have been initiated

treating appellants-defendants as tenants. Admittedly, appellants

are tenants and they defended the present civil suit in the

capacity of tenant. It is not the case that the tenancy of

defendants had been terminated and they were sought to be

evicted as unauthorized occupants. The eviction has been sought

on the ground of bona fide and reasonable necessity. Even it is not

the defence of defendants in their written statement that they are

not tenant and are unathorised occupants in the rented shop.

According to pleadings, evidence and material available on record,

appellants cannot be treated as unauthorized occupants as defined

under Section 2(e) of the Unauthorised Occupants Act of 1964.

20. Once neither the rented shop is public premise nor the

appellants-defendants are unauthorized occupants, the provisions

of Section 10-A of the Unauthorised Occupants Act of 1964 cannot

(19 of 21) [CSA-669/2009]

be pressed into service at the stage of second appeal. More

particularly when there is no such defence taken in the written

statement and there is no foundation available on record to

initiate the proceedings before the Estate Officer for ejectment of

tenants under the Unauthorised Occupants Act of 1964. This Court

is of considered opinion that the objection of the counsel for

appellant-tenant is that the jurisdiction of civil court is barred to

entertain the present eviction suit, by virtue of Section 10-A of the

Unauthorised Occupants Act of 1964 cannot be entertained.

The judgment relied upon by counsel for appellants in case

of Basanti Devi (supra) passed by Co-ordinate Bench of this Court

does not render any help to appellants in the present case as in

that case firstly the waqf was made in favour of the Maszid Panch

Visaytiyan and waqf property was a public property. Secondly, in

that case, defendants tenancy have been terminated and they

were found in unauthorized occupation of the waqf property. Such

facts are not available in the present case. Hence, bar under

Section 10-A of the Unauthorised Occupants Act of 1964 is not

applicable to the present case at all.

21. On perusal of the plaint and the nature of eviction

proceedings, it stands clear that the present eviction proceedings

were initiated against appellants-tenants on the ground of bona

fide and reasonable necessity invoking the provisions of Section

13(i)(h) of the Rajasthan Premises (Control of Rent and Eviction)

Act, 1950 way-back on 30.01.2003. The issue of bona fide and

reasonable necessity coupled with the issue of comparative

hardship and partial eviction have been examined by two courts

below after appreciation of evidence adduced by both the parties.

(20 of 21) [CSA-669/2009]

Both the courts of fact findings have concurrently held that the

rented shop is bona fidely and reasonably required for Mohammad

Haleem to start the grocery business. Learned counsel for

appellants-tenants could not point out as to how and in what

manner such findings of fact recorded by two courts below suffer

from any infirmity, illegality, perversity or jurisdictional error. It is

not the case that the findings of fact are suffer from any

misreading/non-reading of evidence. As per legal proposition also,

the issue of bona fide and reasonable requirement is purely a

question of fact and findings are based on appreciation of

evidence. Once the two fact finding courts on appreciation of

evidence have recorded the findings about the bona fide necessity,

it is not required for the High Court to interfere with such findings

of fact on re-appreciation of evidence within scope of Section 100

CPC. Whether the rented premise is bona fidely required or not to

the landlord do not involve any substantial question of law. The

Supreme Court in case of Ram Prasad Rajak vs. Nand Kumar

& Bros. and Anr. reported in [(1998) 6 SCC 748] has

propounded such proposition of law which has been affirmed and

reiterated in many more subsequent decisions. Thus, this Court

finds that there is no perversity or jurisdictional error in the fact

findings of two courts below nor the same lead to any miscarriage

of justice, hence, no interference is called for in such findings

within scope of Section 100 CPC.

The substantial question of law as proposed and suggested

by counsel for appellants have been considered and examined on

the anvil of nature of substantial question of law. For the

discussion made hereinabove, the same do not fall within the

(21 of 21) [CSA-669/2009]

ambit and scope of substantial question of law. The simplicitor suit

for eviction may not be allowed to be converted into a suit

involving a dispute of the waqf property, which in fact does not

involve in the present suit right from inception. An attempt made

by counsel for appellants to convert the dispute of eviction into

the dispute of waqf property cannot be accepted and rather the

same can be said to be preposterous, and misleading attempt. The

eviction proceedings were initiated in the year 2003 and pending

since nearabout two decades, therefore the litigation based on the

ground of bona fide and reasonable necessity should come to an

end.

22. The upshot of discussion factual and legal made hereinabove

is that the instant second appeal is bereft of merits and does not

involve any substantial question of law and accordingly the same

is hereby dismissed.

However, since the appellants-tenants are in use and

occupation of the rented shop since long, this Court deems it just

and proper to grant three moths time to vacate and hand over the

peaceful possession of the rented shop to respondent-plaintiff

subject to payment of arrears of rent, future rent as mesne profit,

if any. There is no order as to costs.

Record of both courts below be sent back.

All pending application(s), if any, stand(s) disposed of.

(SUDESH BANSAL),J

SAURABH/83

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